Opinion,

The main contention in the case depends on the agreement of April 21,1876. Though evidently the production of the *325parties themselves, (as testified, by plaintiff in rebuttal), and quite defective and confused, it is nevertheless soluble by a brief consideration of the situation and intention of the parties. The principal contract was for the exchange of farms, the payment of the boot money, the furnishing of money by Crossman to clear Ms farm in Virginia of “ a certain claim,” and the making of a deed by him clear of incumbrances. Then follows the clause which has made the present trouble:

“ And Crossman further agrees that should Hamilton gain a certain lawsuit now pending, wherein P. A. Williams is plaintiff and said Hamilton defendant, the cause of said action or claim of Williams being for twenty-one acres of land, to pay Hamilton $1,000 more. Should Hamilton lose said suit, he is only to receive the $1,500 or more previously mentioned; ” and (after several details about smaller items) “ Hamilton to give a good and sufficient deed, free from liens,” etc.

What is the rational construction of this clause ? What gave Crossman such an interest in a lawsuit of Hamilton’s that he was willing to pay a thousand dollars if Hamilton gained it ? The parties themselves describe the subject-matter of the suit as “ being for twenty-one acres of land.” The record shows that it was an action of trespass. If it was barely that, and nothing more, it would simply determine whether Hamilton should be amerced for his tort, and how much, and no possible interest of Crossman in that question has been shown or suggested. But if it was regarded as a suit for trespass, which would be a test of title, then success would mean that Hamilton could make the good and sufficient deed stipulated for, and thereupon Crossman would pay him the additional thousand dollars for the additional land, to wit, the twenty-one acres. So regarded, the whole matter becomes plain and comprehensible. The deed that was to be made refers fairly, if not exclusively, to the twenty-one acres. They were not included in the deed already made and dated three weeks before the contract, and presumably delivered contemporaneously; for that corresponded, with trifling variations in the second and fourth courses, with the deed from Williams to Hamilton, which called for two hundred acres, “ strict measure.” But it appears from the evidence that in the purchase of these two hundred acres Hamilton had understood that all the cleared land of the Williams farm was *326included, and he had a covenant from Williams to be responsible for any damage which Hamilton should sustain by reason of the failure of the boundaries given in the deed to include all the cleared land. This was apparently the origin of the controversy about the twenty-one acres, and led to the acts which resulted in the suit for trespass. Hamilton, and from him Crossman, plainly regarded the suit as a test of title, and the payment of the additional thousand dollars was clearly contingent on the validity of the title of which Hamilton’s gaining the suit was to be accepted as satisfactory evidence. The deed would then have followed as the necessary completion by Hamilton of his part of the performance of the covenants of the agreement. It being admitted that no deed had been delivered, or even tendered, the jury should have been told explicitly that as to the item of $1,000 for the twenty-one acres the plaintiff could not recover.

With this understanding of the agreement, it follows that the only tenable construction of the expression, “gain the suit,” is that it should be brought to a successful termination on the question of title. That was the only question in which Crossman had any interest, and that was the only success which could in any way further the purpose of the agreement. The suit was terminated by a nonsuit, which in itself did not conclusively settle anything. Evidence as to the reasons of the nonsuit was therefore admissible. But the failure of the plaintiff to make out his case on the delivery or tender of a deed, renders this jDoint unimportant.

The main contention being thus settled adversely to the plaintiff, on grounds that will probably be decisive of his claim to recover at all, it is not worth while to discuss the minor questions involved in the numerous assignments of error.

Judgment reversed, and venire de novo awarded.